The following facts were established in the state's case-in-chief at trial.
Defendant was stopped for a speeding violation while riding his motorcycle. During the
stop, the officer noticed ammunition in a partially opened fanny pack around defendant's
waist. The officer asked defendant if he had a gun with him, and defendant replied that
he did. The officer asked to hold the gun for safety purposes during the stop. Defendant
removed the weapon that had been concealed in the fanny pack and gave it to the officer.
While checking on the status of defendant's drivers license, the officer ascertained that
defendant did not have a concealed weapons permit. After informing defendant of his
Miranda rights, the officer asked him why he had the gun. Defendant

"said that he'd left earlier in the evening to go shooting at the gun range at
Delta Park and before he got there, he stopped at a friend's house, and then
he went to where he works in Vancouver, Washington and by the time he
was done at his work place, the gun range had closed, so he came home."

After the stop, defendant was charged with unlawful possession of a firearm, ORS
166.250(1)(a), and the matter went to trial.

At the close of the state's evidence, defendant moved for a judgment of
acquittal, arguing that the state had failed to prove that the exception to ORS
166.250(1)(a) in ORS 166.260(2)(a) did not apply to defendant. ORS 166.260(2)
provides, in part:

"Except for persons who are otherwise prohibited from possessing a
firearm under ORS 166.250(1)(c) or 166.270, ORS 166.250 does not apply
to or effect:

"(a) Members of any club or organization, for the purpose of
practicing shooting at targets upon the established target ranges, whether
public or private, while such members are using any of the firearms referred
to in ORS 166.250 upon such target ranges, or while going to and from such
ranges." (Emphasis added.)

Before the jury was instructed, defendant's counsel requested the giving of a
jury instruction pursuant to ORS 166.260(2)(a). The trial court ruled that the evidence
did not support the giving of the instruction. The trial court explained,

"Under your argument, any day he wanted to go to work and plan on that
day going to the firing range, he would be able to carry a concealed weapon
without a permit, as long as he just felt, well, today I'll go shoot so I'll carry
this with me or, perhaps, even tomorrow I'll go shoot. But I plan on going
up, I'll just carry it with me until I happen to get there tomorrow."

Defendant was found guilty by the jury and appeals.

On appeal, defendant raises two assignments of error regarding the court's
denial of his motion for a judgment of acquittal and the denial of his request for the jury
instruction under ORS 166.260(2)(a). As to the denial of the motion for acquittal,
defendant argues that:

"In a prosecution for Unlawful Possession of a Firearm (ORS 166.250), the
accused has a right to have the jury told of all the relevant law relating to
the defense theory of the case. This includes the statutory exemption to
criminal liability for members of a club or organization while traveling to or
from an established target range (ORS 166.260(2)(a)[)], when there is
evidence produced establishing the exemption. The state produced
evidence of the applicability of the exemption in its case-in-chief. Under
these unique facts, the state has the burden to disprove, in its case-in-chief,
the exemption's application to the defendant, beyond a reasonable doubt.
The state failed to meet this burden."

Applying the same methodology to the language in issue in this case, we
inquire whether the phrase in ORS 166.260(2)(a),

"ORS 166.250 does not apply to or affect * * * members of any club or
organization * * * while such members are using any of the firearms
referred to in ORS 166.250 upon such target ranges, or while going to and
from such ranges,"

We turn then to the issue of whether the defense under ORS 166.260(2)(a)
is a defense that the state must disprove, or a defense that defendant must prove. ORS
161.055 provides:

"(1) When a 'defense,' other than an 'affirmative defense' as defined
in subsection (2) of this section, is raised at a trial, the state has the burden
of disproving the defense beyond a reasonable doubt.

"(2) When a defense, declared to be an 'affirmative defense' by
chapter 743, Oregon Laws 1971, is raised at a trial, the defendant has the
burden of proving the defense by a preponderance of the evidence.

"(3) The state is not required to negate a defense as defined in
subsection (1) of this section unless it is raised by the defendant. 'Raised by
the defendant' means either notice in writing to the state before
commencement of trial or affirmative evidence by a defense witness in the
defendant's case in chief."

Thus, we inquire next whether the defense under ORS 166.260(2)(a) is
governed by subsection (1) or (2) of ORS 161.055. ORS 166.260(2)(a) is not one of the
affirmative defenses declared by Oregon Laws 1971, Chapter 743. However, ORS
161.035(2) authorizes the application of ORS 161.055 to statutes defining offenses and
defenses outside those declared by Chapter 743. See State v. Brown, 306 Or 599, 604 n 5,
761 P2d 1300 (1988).

In Vasquez-Rubio, 323 Or at 281, the court said:

"[T]he legislature can provide for a defense or an affirmative defense by
using words of limitation such as 'except that,' 'however,' or 'provided that.'
* * * [I]t is clear that, when the legislature enacts a criminal statute, it
knows how to create a defense or an affirmative defense. The legislature
did not, however, provide for an affirmative defense when it enacted ORS
166.272. The statute does not provide that 'it is an affirmative defense' to
unlawful possession of a machine gun if the gun is registered as required
under federal law."

As to the trial court's denial of defendant's requested jury instruction, we
review such a denial "in the light most favorable to the establishment of the facts
necessary to require submission of the case to the jury." Brown, 306 Or at 607, quoting
Carter v. Mote, 285 Or 275, 279 590 P2d 1214 (1979). We will uphold the trial court's
denial only if "there is no evidence in the record to support * * * [the instruction]."
Brown, 306 Or at 605. As stated above, the record contains evidence of defendant's
membership in a target shooting club at the time that the jury instruction was requested.
However, defendant testified that he was not going to the shooting club or coming home
from it at the time that he was stopped. Nonetheless, defendant's counsel argued to the
trial court and reiterates on appeal:

"Given the antiquity of this law,[ (7)] it's my position that such minor
deviations from the normal path of daily travel were anticipated. Would he
have deviated in a prohibited manner if he were to stop and get gasoline on
his way to or from the target range? I don't think you'd say that would
disqualify him. In this circumstance, * * * I don't think [defendant's]
actions were unreasonable. And in reading the law, I think they tailor
within the exception that the legislature has carved out for members of
organizations who possess, own and use firearms."

Defendant's argument presents an issue of legislative intent. Did the
legislature intend the exception in ORS 166.260(2)(a) to apply to defendant's
circumstances? We first examine the text and context of the statute. The words most
significant to the issue are the words in the statute "or while going to and from such
ranges." ORS 166.260(2)(b) provides context. Under subsection (2)(b), ORS 166.250
does not apply to or affect:

"Licensed hunters or fishermen while engaged in hunting or fishing, or
while going to or returning from a hunting or fishing expedition."

"(1) Except as otherwise provided in this section, ORS 166.260,
166.270, 166.274, 166.280, 166.291, 166.292 or 166.410 to 166.470, a
person commits the crime of unlawful possession of a firearm if the person
knowingly:

3. In Tamler & Polly, the defendant was charged with violating certain
provisions of the Act of 1889, that prohibited the selling of certain liquors without a
license. Section 11 of that Act provided that, "[n]othing in this act shall be so construed
as to apply in any manner to incorporated towns and cities of this State." The court held
that it was not necessary to allege in the indictment that the sale did not take place within
an incorporated city, explaining:

"The exceptions should be negatived only when they are descriptive of the
offense, or a necessary ingredient of its definition; but when they afford
matter of excuse merely, they are matters of defense and therefore need not
be negatived in the indictment." Tamler & Polly, 19 Or at 530.

6. Defendant did provide pretrial written notice of his intent to raise the choice
of evils defense, and also requested Uniform Criminal Jury Instruction (UCrJI) 1103 on
that defense. His request for a jury instruction on the provisions of ORS 166.260(2)(a)
did not arise until after the close of the evidence.

9. ORS 174.010 provides in part that, "in the construction of a statute, the
office of the judge is simply to ascertain and declare what is, in terms or in substance,
contained therein [and] not to insert what has been omitted."